P L D 2011 Peshawar 23 (PLP)

SYED SAJJAD HASSAN SHAH, J.

Mst. Nishat, the plaintiff/petitioner has challenged the judgment and decree passed by the learned District Judge, Peshawar dated 12-3-2007 under section 115 of C.P.C., whereby, appeal filed against the judgment and decree dated 27-11-2006 was dismissed. Brief facts of the case are that:

1. The petitioner/plaintiff by way of the present suit has challenged the legality, propriety and authenticity of a registered sale-deed No. 1303 attested on 30-8-1971, thereafter, on the basis of said registered sale-deed, a mutation No.1774 was attested on 28-5-1975 on the grounds that the same was the result of fraud and collusion, without consideration, without any notice to the plaintiff/petitioner, thus, fake and fictitious, being pardanasheen and orphan lady deprived of her ownership rights in the suit property by her real uncle namely Zameer Gul, (the predecessor of defendants/respondents) taking the benefit of fiduciary relation, managed the property after the death of her father namely Shehzad Gul, when the plaintiff/petitioner was aged bout 20 years manipulated the transfer of the suit property in his name, whereof, the above mentioned sale-deed was registered, on the other hand, the share in profits of the suit property was being paid by the said Zameer Gul, after his demise, the successors in interest paid the profits of the suit property till the institution of the instant suit. The plaintiff/petitioner was unaware of the change brought in the revenue record, but before filing the suit she has got the knowledge of registered sale-deed from patwari halqa, therefore, the instant suit has been filed. The defendants/respondents contested the suit by filing their written statement, issues were framed, evidence of the parties recorded, the learned trial court while seized of the matter, dismissed the suit of the plaintiff/petitioner. Feeling aggrieved, the plaintiff/petitioner challenged the same by filing an appeal, same was accepted and the suit was remanded back to the learned trial court for the comparison of signatures and thumb impression of the plaintiff/petitioner and Abdul Hakeem (P.W.4). The relevant portion of the judgment of the learned Additional District Judge, reproduced as under: "To summon Abdul Hakeem son of Abdul Haleem and obtained (sic) his signature or thumb impression whatever is present on the sale-deed or mutation and similarly, he also obtained (sic) thumb impression or signature of Mst. Nishat plaintiff and send the same to expert of opinion and thereafter, decide the case in the light of opinion of expert, if the trial court feels that some evidence is required to be recorded, the court can also give this opportunity to the parties." 3(sic). The learned trial court after receiving the record of the case, obtained the specimen signatures and thumb impressions of Mst. Nishat, plaintiff and Abdul Hakeem, sent to the FSL for comparison, report received that signatures are not tallying with the specimen signatures; whereas, the thumb impression is of similar nature, thus, in view of the report the learned trial Court dismissed the suit of the plaintiff/petitioner. The judgment and decree challenged before the learned appellate court, same was also dismissed, hence filed the present petition.

2. The learned counsel for the plaintiff/petitioner contended that the impugned registered sale-deed not executed by the plaintiff/petitioner, same was the result of fraud and collusion between the said Zameer Gul and the officials of the office of Sub-Registrar. The expert report regarding the thumb impression of the plaintiff/petitioner is also wrong and against the facts and not in accordance with the legal requirements, by virtue of this report the entire story of registered sale-deed seems to be dubious and suffering from inherent defects. The learned trial court was not bound to take into consideration the said report, as it is a week type of evidence. The learned counsel further argued that Rs.2000 as sale consideration was entered in the registered sale-deed, however, Khitab Gul (D.W.1) deposed that the sale transaction was effected in sale consideration of a sum of Rs.6000. He argued that the oral as well as documentary evidence not confidence inspiring mutually contradictory, may be excluded from consideration. The learned counsel urged that the burden of proof was wrongly put on the shoulders of the plaintiff/petitioner, whereas, in such like cases it is beneficiary to prove the sale transaction. He has also agitated that the judgment and decree has not been passed in accordance with the provisions contained in Order XLI, Rule, 31 of the C.P.C. Reliance placed upon on PLD 2005 Supreme Court 658, PLD 2005 SCMR 1959, 2009 MLD 262, 2005 YLR 74, PLD 2009 Lahore 41, PLD 2008 Supreme Court 140, 2008 SCMR 1384, 2004 SCMR 185 and 2005 SCMR 152.

3. The learned counsel for the defendants/respondents, forcefully controverted the arguments of learned counsel for the plaintiff/petitioner, in support thereof, made the reference of report of expert and argued that both the learned courts below relied upon the said report. Since, that the parties were on good terms and closely related, there was no occasion to defraud the plaintiff/petitioner by her real uncle. He further argued that the plaintiff/petitioner appeared before the Sub-Registrar, identified by the witnesses, Rs.2000 were received as sale consideration in presence of Sub-Registrar in his office, the certificate of Sub-Registrar made on the registered sale-deed enjoying the presumption of truth. It was stated by D.W.1 that before attestation of sale-deed, she was examined by a doctor in order to ascertain that she is major, medical certificate was issued, same was produced before the Sub-registrar in his office. He further argued that P.W. Abdul Hakeem, the grandfather of the plaintiff/petitioner accompanied her for execution and attestation of sale-deed, reliance placed on statement of D.W.1, as an independent and disinterested witness. In such circumstances, the burden of proof successfully discharged by the defendants/respondents. He has also placed reliance on 2001 CLC 810, 1991 SCMR 1577, 2005 CLC 83, 2007 SCMR 996, 1991 SCMR 2300, 2004 CLC 1348, 2004 CLC 555, 2008 SCMR 1182, 2005 CLC 515, 2006 SCMR 170, 2001 SCMR 1700 and 2008 SCMR 418.

4. The arguments of the learned counsel for the parties considered and record carefully perused.

5. It is an admitted fact that the plaintiff/petitioner, at the time of attestation of alleged sale-deed was aged about twenty years, observing) parda. Whenever, the transaction is accomplished with the pardanasheen lady, extraordinary care and cautions is legally required to be taken in execution of the sale-deed, as after the sale transaction, whenever, it would be challenged by the lady, the vendee may be able to prove the facts relating to the sale-deed by producing overwhelming evidence free from any doubt. Notwithstanding, that vendee is duty bound to prove the execution of registered sale-deed and that same must be read over and explained, but he might have to prove that the plaintiff/petitioner fully comprehended the terms and conditions of sale transaction, thus was fully aware of the transfer of her ownership rights. He has to prove that she was accompanied by her closed relative having no clash of interest, sale transaction was concluded in presence of witnesses, sale consideration fixed was paid to the lady and that she must be aware of the piece of land sold to the vendee. She appeared before the Sub-Registrar, and then was made to understand about the sale transaction, and after the satisfaction of the Registering Officer in the presence of witnesses, the plaintiff/petitioner has signed the sale-deed, thereof attested by the Sub-Registrar. Moreso, she has the opportunity of t independent advice. The vendor has also to discharge the burden of proof in good faith as required under Article 127 of the Qanoon-e-Shahadat and being beneficiary of document he was bound to prove the transaction of sale.

6. The validity, propriety, legality and authenticity of the disputed sale transaction would be adjudged in the light of aforestated established principle of law, to see that how far the defendants/respondents have complied with and proved the sale transaction.

7. To discharge the onus of proof, the defendants/respondents produced a sole witness namely Khitab Gut, who was examined as D.W.1, deposed that he was present in the office of Sub-Registrar at the time of registration of sale-deed, besides, one Muhammad Aslam, Lamberdar and Abdul Hakeem son of Abdul Haleem the attesting witnesses were accompanied by another unknown person, present, thus, acted on behalf of Zameer Gul, handed over the sale amount of Rs.6000 to the witness who after counting, paid to Mst. Nishat the vendor, however, was unaware of the name of the said witness. In examination?in-chief, he stated that Zameer Gul was present in person in the office of Sub-Registrar and paid the sale consideration of Rs.6000 to Mst. Nishat, plaintiff/petitioner. It is worth mentioning that in the sale-deed, the sale consideration was recorded as Rs.2000. Moreover, he was shown to have stood as witness, at the time of scribing the sale-deed on 28-8-1971 and shown to have thumb impressed before the petition writer, the sale-deed was registered on 30-8-1971, it is also worth mentioning that the witness is silent about his alleged presence at the time of scribing and thumb impressing the deed, moreso, his assertion that he stood as witness before Sub-Registrar, neither supported from, the record nor by his evidence, above all the same, he has not stated that Abdul Hakeem son of Muhammad Alarn stood as witness of the deed, who was the maternal uncle of the plaintiff/petitioner (examined as P. W .4 and denied appearance and signing of registered deed before the Sub-Registrar), he has also failed to mention the name of Abdul Hakeem son of Abdul Haleem, however he deposed that her maternal grand father was accompanied the plaintiff/petitioner, but besides being closely related to the parties failed to disclose his name. He has shown ignorance as to whether, he had thumb impressed or not the sale-deed, scribed by petition writer or before Sub-Registrar at the time of registration. He at the very outset stated that he had identified the plaintiff/petitioner Mst. Nishat before Sub-Registrar, in his presence she had thumb impressed as well as signed the sale-deed, but he has not been confronted with his thumb impression on the registered sale-deed as purportedly stood witness before the petition writer, moreso, his presence or affixing thumb impression has not shown on the registered sale-deed to fortify his statement. This fact is per se sufficient to conclude that D.W. 1 was not present in the office of the Sub-Registrar, the entire story narrated by the witness is concocted. The contradictory statement made on important aspects of the case, thus, not believable, the statement of this witness is not admissible in evidence, as his statement is hit by Articles 102 and 103 of the Qanoon-e-Shahadat (10 of 1984) as he has deposed beyond the terms of agreement. Only ipse dixit of the respondent is not sufficient to hold that the sale transaction was effected and was executed and registered in favour of Zameer Gul the predecessor of the defendants/respondents, moreso, the statement of D.W.2 defendant No.1 is hear say evidence, therefore, not helpful to the case of defendants/respondents.

8. There is no evidence available on record that why Muhammad Aslam Khan Lamberdar, the alleged witness before Sub-Registrar has not been examined as witness, moreso, no secondary evidence produced to prove his signature, if at all he is dead, however no proof brought on record about his death, therefore, presumption can be drawn that had he been examined, he was not supporting the case of the plaintiff/petitioner, the provisions of Article 80 of Qanun-e-Shahadat Order, 1984 have not been complied with, as it is laid down that it must be proved that the attesting witness either dead or cannot be found and that the document was executed by the person, purported to have done so. Moreso, the provisions of Article 78 have also not been adhered to, as neither scribing of the document nor signing of the document proved. In this respect, reliance placed in the case titled Chaudhry Munir Hussain v. Mst. Waziran Mai alias Mst. Wazir Mai reported as PLD 2005 Supreme Court 658, reproduced as under:--???? "(b) Qanun-e-Shahadat (10 of 1984)

Art.78

If a document is alleged to be signed or to have been written by any person, the signature or writing must be proved in that person's handwriting

Article 78, Qanun-e-Shahadat, 1984 placed emphasis on the proof of identity of author of questioned documents and said Article does not say that mere proof of handwriting/signatures/thumb impression of executant will prove truth of the said document." The rule has further been emphasized in a case titled Anwar Ahmed v. Mst. Nalisa Bono, reported as 2005 SCMR 152, reproduced as under:-- (i) Qanun-e-Shahadat (10 of 1984)

Arts. 72 & 78

Execution of document

Proof

Death of Witness

Secondary evidence, non production of

Failure to raise objection at the time of producing disputed document in evidence--Plaintiff relied upon a document attested by Notary Public

Plaintiff could not produce Notary Public due to his being dead, neither any other witness was produced during the trial as secondary evidence

Validity

Non-production of Notary Public to prove the contents of the document was fatal to the case of plaintiff with legal consequence that the recitals of the document could not be proved in terms of Art. 78 of Qanun?-e-Shahadat (10 of 1984)-Mere statement of the plaintiff regarding death of witness would not exonerate the plaintiff from his legal obligation to prove the contents of a disputed document

Fact regarding death of Notary Public should have been pleaded before trial court and having established non-availability of the witness by reason of his death, steps should have been taken to adduce secondary evidence with leave of trial court--Simply because no objection was raised to the production of document would not render the document as proved. (i)???????? that none of the identifying witnesses produced during the trial of the case allegedly present at the time of execution of sale-deed in the office of sub-registrar, meaning thereby, that the factum of registration of sale-deed and presence of plaintiff/petitioner, receipt of sale consideration not proved by the available evidence. (ii)??????? even otherwise, one Khitab Gul, D.W.1 (relative of the parties) not on visiting terms with the plaintiff/petitioner, was stood as witness at the time of scribing of the document, the presence of Mst. Nishat plaintiff/petitioner not established at the time of scribing of the sale-deed, on a question in cross examination, he has failed to disclose the name of any of the witnesses present at the time of execution of sale-deed in favour of Zameer Gul, in these circumstances, it can be safely said that, the requirements of provisions of Article 79 of Qanun-e-Shahadat (10 of 1984) have not been fulfilled. Since, the sale-deed not proved according to the requirements of law, therefore, cannot be treated as title deed to rebut the claim of the plaintiff/petitioner. (iii)?????? the defendants/respondents have miserably failed, to prove the sale transaction and its one of the essential components, i.e. the 'payment of sale consideration, rather, they have failed to comply with the requirements of Article 17 of the Qanun-e-Shahadat, it is the legal necessity that in matters pertaining to financial or future obligations, if reduced into writing, the instruments shall be attested by two men, or one man and two women, so that one may remind the other, if necessary and evidence shall be led accordingly, in the instant case, no such witness has been produced in order to substantiate the payment of sale consideration to the plaintiff/petitioner.

10. In this case as per requirements of law the defendants/respondents had to prove their case, in order to obtain the verdict of court in their favour, but they have failed to prove the execution of sale-deed, as required under Articles 78 and 79 of the Order ibid, the defendants/respondents were not entitled to any benefit as sought by them.

11. In connection with the expert report about the signature of Mst. Nishat, plaintiff/petitioner and Abdul Hakeem, P.W.4, ACW-1 and 2 were examined. As per opinion, the signatures are fake and fictitious not matching with admitted signatures. The evidence of ACW-3, wherein, he opined that the thumb impressions are similar to that of admitted thumb impression of Mst. Nishat, this evidence cannot be considered, notwithstanding being weak type of evidence, but the defendants/respondents have failed to comply with the provisions contained in Articles 78, 79 and 80 of the Qanun-e-Shahadat, therefore, under Article 84, expert opinion made permissible, in the instant case, same was also about thumb impression, but negates the claim of defendants/respondents about the signing of disputed sale-deed, therefore, not of any importance as it's a supportive evidence of the rest of the material on the file, even otherwise the mere expert evidence cannot be considered in supersession of other material available on record, whereby inference can be drawn altogether contrary to the expert report. When the party has failed to prove its case not entitled to be given the benefit of the sole opinion of expert which by its nature is a weak evidence, in this respect reliance can be placed on a case titled Syed Muhammad Umer Shah v. Bashir Ahmed, reported in 2004 SCMR 1859, in another pronouncement of august Supreme Court titled as Anwar Ahmed v. Mst. Nafisa Bano through legal heirs, reported in 2005 SCMR 152(m):-- "Article-61

Handwriting Expert Opinion

Scope

Evidence-of Handwriting Expert is always considered to be a weak type of evidence

In present of overwhelming evidence, oral, documentary as well as circumstantial, it would be futile to examine the expert

Even if examined, it would not outweigh the available evidence." 11-A. Both the learned courts below have failed to note, that whenever, the registered sale-deed has been challenged by a pardanasheen lady or similarly placed person i.e. old, disabled, weak, ailing, illiterate, ignorant, inexperienced and unable to comprehend or conceive nature of business transaction, they have been provided the cloak of protection and in such circumstances onus of proof always rested on the shoulders of the person who is the beneficiary of transaction to show, that transaction was actually understood and put into practice by disposer himself, in such eventualities the party to the suit, who is the beneficiary of the transaction must establish by furnishing strong and most satisfactory proof, that not only the document was executed, but the illiterate person or pardanasheen lady had fully understood, what was contained in the document. It does not matter that, the defence is taken that there was no duress, protest, misunderstanding or want of comprehension is not in itself the real proof of true understanding mind of the executant, in fact, the intent and purpose of the law is that evidence must have been brought on record, in order to prove that document was read over and explained to the executant, in as much as, in the language which the executant was unable to understand, was fully translated to make the executant to understand the details of sale-deed. Besides, it is incumbent upon the beneficiary of the transaction to bring on record all available evidence, in order to show that, onus of proof discharged as required under the law. In this regard reliance can be placed upon dictum laid down in a case titled Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others reported as 2008 SCMR 2384, relevant paragraph-9, reproduced as under for ready reference:-- "The mere admission of affixing thumb-impression or appearing before the sub-registrar is not sufficient to infer that the donors/plaintiffs have declared their intention to transfer their share of property (in dispute) which devolved as being legal heirs of Ghulam Muhammad, in favour of the defendant. Moreover, mere registration of a document in itself is not the proof of its execution, when the executant denied its execution. In the case in hand, the executant appeared in person and disputed the execution of the document. Therefore, the person claiming the execution of such document is required under the law to prove its execution that it was in fact executed. Reliance in this behalf can be placed on a case titled Muhammad Sharif Uppal v. Akbar Hussain, reported as PLD 1990 Lahore 229." In another precedent, the rule laid down by august apex Court as the case titled Irshad Khan v. Mst. Resham Jan and others, reported 2005 SCMR 1859, relevant paragraph-5 (c), reproduced as under:-- "The express or oral relinquishment of the right of a female f heir in the inherited property in favour of normal circumstances, through gift take any other legal device, may effect but if the existence of such a transaction is denied and disputed by the female heir, the presumption would be that the transaction was not genuine and the onus to prove that it was entered in good faith and was a genuine transaction, on the person who was claiming its geniuess and if failed to discharge satisfactorily, the document of relinquishment of rights of female heir in the property in favour of a male heir, would not ipso facto, confer, title adverse to the interest of female heir. The mutations are entered and sanctioned to maintain the revenue record in order, which do not as such create right or title in the property, therefore, the entries in the revenue record based on a wrong mutation, would have no legal effect in respect of the title of its true owner." The above mentioned rule has ,been further reiterated in a case titled Chaudhry Munir Hussain v. Mst. Waziran Mai alias Mst. Wazir Mai Supra. (a) Contract Act [IX of 1872]

S. 16

Specific Relief Act [I of 1877], Ss. 12 & 42

Qanun?e-Shahadat [10 of 1984], Art. 78

Suit for specific performance of agreement to sell and declaration

Beneficiaries of the document executed by ignorant/illiterate/parda-observing ladies, have to prove by overwhelming evidence, the execution of such documents by such ladies and they have to further prove that such transaction and such document were explained to the executants who had independent advice at the relevant time....Semi-Illiterate Parda-observing females are entitled to the. protection. of law governing such ladies

Court has to be very careful in recording findings as to the execution of any agreement by such ladies and it would not be sufficient to show that the document was read over to the parda-observing lady but it must further be proved that she understood its nature and effect

Where the evidence had not established that the documents in question were executed by such a lady or that they were executed by her voluntarily out of her own free-will and that at the time of execution of the documents she had an independent advice to her close relatives and that the contents of the documents were read over to her and nature of the transaction was explained to her, onus was on the beneficiary of the document which he failed to discharge in the present case--Beneficiary of the document had not been able to point out any non- reading of evidence or illegality in the impugned judgment of the High Court wherein execution of documents by the lady was disbelieved

Lady was being continuously victimized and was out of possession of her landed property for the last 26 years and was suffering because the beneficiaries of the document thought that she being a helpless lady, he could grab her property

Supreme Court declined interference. In this regard, reference of a case titled Abdul Rasheed and 5 others v. Haji Shaukat Ali, reported as 2009 MLD 262 (Karachi) can also be made, wherein the same rule has been followed.

13. In the instant case allegedly D.W. 1 was present at the time of the scribing of the sale-deed and the same was thumb impressed and signed by plaintiff/petitioner in presence of the petition writer, the sale-deed and its other details and particulars to have been recorded in the register of petition writer, he obtains the signatures or thumb impression on his register, moreso, stamp vendor is also a competent witness, because, he used to sale the stamp papers under the control of licensing authority. He is duty bound to maintain the record of purchase and sale of stamp papers, he also obtains the signature and thumb impression as a token of sale of stamp paper from the purchaser and identifier in his register of stamp vendor, therefore, his testimony can be used as the corroborative piece of evidence in such like cases, both independent and important witnesses have been kept out of arena of litigation, nullifies the entire story of sale transaction, which connotes the commission of fraud and collusion with the connivance of concerned officers/officials, the Sub-Registrar was also an important witness in the case as he attested the impugned registered sale-deed, but he has not been brought in witness box, therefore, presumption can be drawn under Article .129(g) of the Qanun-e-Shahadat (10 of 1984).

14. The presumption attached to a registered document under section 60 of the Registration Act, 1908 have no universal application and cannot be considered as gospel truth in every case. In the present state of affairs, while deciding the dispute of alike nature, the Court must be at guard that in wake of such presumption, the innocent, simple, illiterate and village rustic people have not been robbed by the persons at behest of clever, influential and belonging to the sphere of high level society. At the time of the enforcement of the Registration Act No.XVI of 1908, the socio economic system based upon the values and traditions which were of quite different and distinct nature, therefore, cannot be considered at par with the affairs now prevailing in our socio economic system, as compared to aforestated state of affairs, we shall definitely come to the conclusion that at present the values, the financial and sock economic mood of certain segment of the society have totally been changed, in order to provide legal protection to the people at large, the courts are to interpret the law, to meet the challenges of present time, therefore, the duty casts on the shoulder of the courts, while extending such presumption jealously watch and look into the attending circumstances of the case and to make all efforts to find out, as if some element is not deriving unlawful advantage, while seeking such presumption, if in the light of facts and circumstances of the case, the court arrives at the conclusion that a litigant seeks the exercise of powers in his favour for ulterior and unlawful motives not to be left unchecked, the chronic litigants/other persons who used to be instrumental as of their indulgence in concerned offices, they are fully aware of the techniques which they use to apply in course of registration of a document, e.g. the sale consideration paid to the vendor, after endorsement by the Registrar, excess amount, returned back to the vendee out of the office of the Sub-Registrar. In case of dispute, the evidence brought on record must be scrutinized with all certainty in order to arrive at just and lawful conclusion. The endorsement carries rebutable presumption, the court can take even judicial notice of the endorsement and can rendered its own findings about the validity and legality of the same. Besides, the paramount duty of the Registering Officer is to closely look into this aspect of the matter and to be weighed with realities that have come to the surface, to arrive a correct and just conclusion, as to the authenticity of amount and events mentioned in certificate, rather than so called presumption of truth which the Registering Officer has given undue weight. In a case titled Qazi Altaf Hussain and another v. Ashfaq Hssain, reported as 1986 SCMR 1427, the vendee was son of vendor, sale-deed reciting that the vendor has received sale price at home and nothing was to be paid to vendor at the time of registration, the vendor made the admission before the Registrar about the receipt of sale consideration, one of marginal witnesses produced as a defence witness, but he had not stated about the payment of sale consideration in his presence, vendor stated to be an old, sick and blind person, living with vendee in same house, vendor who could take advantage of this situation ought to have produced sufficient evidence to show that sale consideration had been actually paid, but in the cited case vendor has failed to do so, therefore, the sale was declared without consideration and brought about as a result of undue influence. It is held in PLD 1986 Lah. 414 that presumption of truth of Sub-Registrar's endorsement on sale-deed about the payment of sale price

Stands rebutted when payment of sale price is not supported by any evidence in writing. In the present case there is not an iota of evidence available in support of the payment of sale consideration, rather the sale consideration mentioned in registered deed is contradicted by D. W.1 stated to be present at the time of payment of sale consideration. Therefore, I am constrained not to extend the presumption in the instant case as provided under section 60 of Act ibid as transaction of sale manifestly seems to be without consideration and brought about as a result of fraud and undue influence. In case titled Parshotam Das v. Yar Ali, reported as AIR 1928 Oudh 439, it was held that the mere registration of the sale-deed does not operate to pass the title to the vendee or to pass any interest in the property purported to have been sold to him, where there was no proof of the transfer of possession of the property nor of the delivery of the sale-deed nor of the payment of consideration, recent view of the honorable Supreme Court in a case titled Mst. Rasheeda Bibi and other v. Akhtar Ahmed and others, reported as 2008 SCMR 1384 relevant para-11 of the judgment reproduced as under:-- "Para-11

The execution or appearance of the party before the sub-registrar is not conclusive proof of the execution of gift. In such a case the Court will have an overall view of all the attending circumstances of transaction and no presumption could be attached to such type of document. Reliance can be placed on the cases of Qazi Altaf Hussain and another v. Ishfaq Hussain, 1986 SCMR 1427 and Muhammad Khan v. Mst. Rasul Bibi, PLD 2003 Supreme Court

676. There is no doubt that the certificate of registration or endorsement on the registered document carries a presumption but no such presumption can be drawn therefrom that such person has really executed the same and it will be open to the parties to prove that the document in question was not really executed by the person shown to have executed the same

Certificate of registration is only to show the execution of the document and presumption beyond that cannot be drawn therefrom." As the sale defined under section 54 of the Transfer of Property Act, sale consideration is an essential component of a valid sale transaction, therefore, without its proof any transaction purported to be a sale would not be declared as such, in this case the sale transaction and sale consideration both have not been proved. Therefore, dictum laid down in case titled Ali Muhammad and others v. Chief Settlement and Rehabilitation Commission and others reported as 1984 SCMR 94, would be applicable with full force, wherein, while defining section 54 of Transfer of Property Act the essential element of sale are given as below: (i)???????? the parties; (ii)??????? subject matters; (iii)?????? transfer or conveyance; (iv)?????? price or consideration; and (v)??????? lawful agreement of sale. The defendants/respondents have failed to prove their case on legal and factual premises, therefore, the contention of the learned counsel for the defendants/respondents is repelled.

15. Another objection was raised that the suit of the plaintiff/petitioner is time barred. The learned courts below have non-suited the plaintiff/petitioner on the question of limitation. In this respect, as admitted on the record by the attorney of the defendants/respondents, that the plaintiff/petitioner has been receiving the produce of the suit land in the life time of Zameer Gul their father and thereafter, the defendants/respondents have also been paying the produce of the suit land to the plaintiff/petitioner. The question is that, when the property has been purchased, why, the above referred share of produce of plaintiff/petitioner was being paid to the plaintiff/petitioner? as she was supposed to have parted with the ownership of the suit property, this fact per se is sufficient to hold that the drama of sale transaction is just a fake and fictitious act on the part of the predecessor-?in-interest of the defendants/respondents. In these circumstances, question of limitation does not arise, as it is averred by the plaintiff/petitioner in paragraph-6 of her plaint, that she was unaware of the entire proceeding of alleged sale transaction, few days prior to the institution of suit she has acquired the knowledge of illegal proceedings, thereafter, she has immediately filed the instant suit. In view of the above referred circumstances, it can be safely held; that the suit of the plaintiff/petitioner is not hit by the law of limitation, however, in similar circumstances august Supreme Court in allow referred case of Irshad Khan v. Mst. Resham Jan laid down the rule, relevant at page 1864 reproduced for ready reference:-- "We having examined a question of limitation found that mutation of gift was challenged on the ground of fraud and in such cases of fraud, the limitation would start from the date of knowledge and not from the date of fraud, therefore, the dismissal of the suit involving the dispute relating to the right in respect of inherited property on the ground of limitation, would not be proper as the mere delay in claiming the share in the inherited property, would not defeat the right of a person in inheritance and if he is non-suited on such technical grounds, his right of inheritance would definitely be defeated. In the light of law laid down by this Court in Ghulam Ali v. Mst. Ghulam Sarwar Naqbi, PLD 1990 Supreme Court 1, it was held that we may observe that the petitioner was not only under the legal obligation to protect the right of his sisters in the suit property rather it was also his moral duty to accept their claim and deliver the possession of the land of share to them voluntarily."

16. In the present case, real uncle of the plaintiff/petitioner managed the transfer of property in his favour from his niece, who was pardanasheen lady, therefore, the payment of sale transaction can be treated in the same manner as provided in the precedent referred to above.

17. Though, the concurrent judgments and decrees passed by learned courts below, learned counsel for the defendants/respondents vehemently argued that the same cannot be disturbed in exercise of the revisional jurisdiction of this Court, I do not agree with this arguments of learned counsel, as perusal of the record shows that judgments and decrees of both the courts below are the outcome of sheer misreading and non-reading of the evidence and even passed in utter violation of law. Concurrent findings of facts are not sacrosanct and can be examined in the light of the record of the case and if found suffering from the legal infirmities and jurisdictional errors, can be declared as illegal without jurisdiction, eventually, can be set aside, reliance can be placed on a case titled Malik Muhammad Khaqan v. Trustees of the Port Karachi K.P.T. and another, reported in 2004 SCMR 1668, can be referred in support thereof. (b) Civil Procedure Code [V of 1908]

S. 115

Revisional Jurisdictional of High Court

Concurrent finings of facts by courts below

Interference

Principles

When findings of facts of Trial Court and Lower Appellate Court are contrary to evidence, material on record and against law, then revisional court has jurisdiction to rectify the same so as to bring findings in consonance with evidence on record or to remove illegality surfacing from judgment

If revisional court finds any violation of provision of law or ignorance of law by court then it is vested with the authority to set aside concurrent findings and substitute its own findings.

18. In view of the above discussion, the judgments and decrees of both the learned courts below are suffering from legal, factual and jurisdictional errors effected the ultimate decision of the case.

19. This petition is accepted, judgments and decrees of both the Courts below are hereby set aside and the suit of the plaintiff/petitioned' is decreed, as prayed for with costs throughout. S.A.K./313/P?????????????????????????????????????????????????????????????????????????? ??????????? Revision accepte